Searcy M. Ferguson, Jr., and Elizabeth L. Ferguson - Page 20

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          tax return.  Petitioners have presented no evidence that Ms.                
          Smith unlawfully appropriated petitioner’s property intending to            
          deprive him of it.  On the contrary, the record demonstrates that           
          petitioner agreed pursuant to the 1988 settlement agreement to              
          indemnify Ms. Smith with respect to any and all taxes for tax               
          years prior to 1987.  As discussed above, in Smith v. Ferguson,             
          160 S.W.3d at 123, the court held that petitioner’s indemnifying            
          Ms. Smith against Federal income tax liabilities effectively                
          estopped petitioner from later claiming that Ms. Smith breached             
          the divorce agreement by failing to file a proper 1986 Federal              
          income tax return.  We conclude that petitioners have failed to             
          show that the alleged failure of Ms. Smith to file a proper 1986            
          Federal income tax return constitutes a theft.  Consequently, we            
          hold that petitioners are not entitled to a section 165 theft               
          loss deduction for the failure of Ms. Smith to file a proper 1986           
          Federal income tax return.                                                  
               Furthermore, petitioners have failed to demonstrate that               
          they are entitled to a section 166 bad debt deduction related to            
          the alleged failure of Ms. Smith to file a proper 1986 Federal              
          income tax return.  We understand petitioners’ contention to be             
          that petitioner’s payment of Ms. Smith’s 1986 tax liability in              
          discharge of petitioner’s obligation as a guarantor may be                  
          treated as a worthless debt and that petitioners may deduct the             
          payment pursuant to either section 166(a) or (d).  The record               






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